Heathcote v Police - [2022] NZHC 2704

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-286

[2022] NZHC 2704

BETWEEN
BARRY HEATHCOTE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 October 2022

Appearances:

D P Nairn for Appellant

S E Arnerich for Respondent

Judgment:

19 October 2022

JUDGMENT OF LANG J

[on appeal against issuing of protection order]

This judgment was delivered by me on 19 October 2022 at 12.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Kayes Fletcher Walker, Manukau

HEATHCOTE v NEW ZEALAND POLICE [2022] NZHC 2704 [19 October 2022]

[1] Mr Heathcote pleaded guilty in the District Court to charges of injuring the complainant, his former partner, with intent to injure her and threatening to kill. On 14 July 2022 Judge S D Otene sentenced Mr Heathcote to 16 months imprisonment.1 The Judge also made a protection order in favour of the complainant.2

[2]Mr Heathcote appeals against the issuing of the protection order.

Background

[3] Mr Heathcote had been in an “on again off again” relationship with his former partner for approximately four years. On 17 November 2021 they became involved in an argument after consuming alcohol. This led to Mr Heathcote committing a series of assaults against his partner. In a sentence indication given on 30 March 2022 the Judge described these as follows:

[4] The allegations are that Mr Heathcote and the complainant with whom he has had a relationship of approximately four years were drinking in a public place on an afternoon last November. Mr Heathcote became upset with the complainant, grabbed her by the hair [and] slammed her head into a timber bench causing bleeding from her head. Next as she stood to leave, he approached her aggressively said amongst other things “I am going to kill you” and whilst saying that elbowed her in the side of her face. When she next ran to a bus stop on the other side of the road it is said that Mr Heathcote followed her, threw her to the ground, stomped on the left side of her head and pushed the right side into the ground simultaneously saying “I will kill you, you bitch. I will fucking kill you, you bitch.” Further injuries suffered were facial bruising, soft tissue swelling and superficial laceration to the forehead and right knee.

Grounds of appeal

[4] Mr Heathcote does not take issue with the Judge’s description of the offending nor the sentence of imprisonment imposed on the two charges. However, he contends the Judge ought not to have issued a protection order for the following reasons:

(a)The Judge did not refer to the possibility that he might issue a protection order when he gave the sentence indication.

1 New Zealand Police v Heathcote [2022] NZDC 13274.
2 At [11].

(b)The protection order was not necessary for the protection of the complainant.

(c)There was no evidence before the Court that the complainant did not object to the making of a protection order.

The sentence indication

[5] In the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 2704
Decision Date: 19 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Barry Heathcote appealed against a protection order issued in favour of his former partner, who was the victim of his violent offending. The District Court Judge had sentenced Mr Heathcote to 16 months imprisonment for injuring the complainant with intent to injure her and threatening to kill. The appeal centred on the Judge's decision to issue a protection order under section 123B of the Sentencing Act 2002. Mr Heathcote argued the order was not necessary for the complainant's protection and that there was no evidence she did not object to the order.

The court examined whether the Judge had erred in issuing the protection order without prior indication during the sentence indication. The court found the Judge had not breached any principle by not mentioning the possibility of a protection order during the sentence indication, as no such expectation had been created for Mr Heathcote. Regarding the necessity of the protection order, the court considered the severity and nature of the offending, the victim impact statement, and Mr Heathcote's previous convictions for family violence offences. The court concluded the Judge was justified in issuing the protection order based on the seriousness of the present offending and the likelihood of future violence. Lastly, the court found no merit in the argument that the complainant objected to the protection order, as the prosecutor had informed the Judge that the complainant had indicated she sought the order.

The appeal was dismissed, and the protection order remained in place. The court found the Judge's decision to issue the protection order was consistent with the relevant statutory provisions and was supported by the evidence presented.

Orders